Ineffective Assistance of Counsel

When I listened to the audio of today’s argument, my first thought was “Why is the Government letting a 1L argue this case?”

Oh, wait–that was Donald Verrilli, the Solicitor General. He stumbled over his words, reached for a glass of water after 45 seconds, and couldn’t grab the lifelines thrown to him by friendly Justices. What a terrible job. (On top of the fact that yesterday he got “tax” and “penalty” confused.) It reminds me of the story about one of FDR’s early SGs who was so bad that some of the Justices informally advised the White House that they’d better get somebody else if they wanted to win.

On the substance, I’ll have more to say soon.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

I get the feeling you’re right, though lots of people on the right are praising Verrilli, it’s probably because they’re trying to be nice. How does one allow health insurance, which is at its essence about dealing with the risk of one day requiring health care one cannot afford, to simply be labeled a “commercial good” and then try to argue on those grounds? Insurance is not, strictly speaking, a good, like broccoli or emergency services. It’s a mechanism for dealing with risk! It cannot be properly compared to a good! His goofball response that “no it’s different because eventually you’re need health care” is idiotic. Why is someone with no understanding of insurance arguing this case??